The Doctors Trial:
The Nuremberg Code

(August 19, 1947)

Before delivering their verdict on the defendants in the Doctors Trial, the judges of the American
military tribunal confronted the difficult question of medical
experimentation on human beings. Several German doctors had argued in
their own defense that their experiments differed little from
previous American or German ones and showed that no
international law differentiated between legal
and illegal human experimentation.

This argument worried Drs. Andrew
Ivy and Leo Alexander, American doctors who worked with the
prosecution, and on April 17, 1947, Dr. Alexander
submitted a memorandum outlining six points that defined legitimate research. The tribunal's verdict
revised the original points into ten assertions in a section
entitled "Permissible
Medical Experiments."

Although this "Nuremberg Code" addressed the defense
arguments, none of the specific findings
against the defendants mentioned the code. Thus, the
legal force of the document was not well established and its uncertain
use continued over the next half century when it informed numerous international ethics statements but failed
to find a place in American or German national law.

Permissible
Medical Experiments

The great weight of the evidence before us is to
the effect that certain types of medical experiments on human beings,
when kept within reasonably well-defined bounds, conform to the
ethics of the medical profession generally. The protagonists of the
practice of human experimentation justify their views on the basis
that such experiments yield results for the good of society that are
unprocurable by other methods or means of study. All agree, however,
that certain basic principles must be observed in order to satisfy
moral, ethical and legal concepts:

1. The voluntary consent of the human subject is
absolutely essential.

This means that the person involved should have
legal capacity to give consent; should be so situated as to be able
to exercise free power of choice, without the intervention of any
element of force, fraud, deceit, duress, over-reaching, or other
ulterior form of constraint or coercion; and should have sufficient
knowledge and comprehension of the elements of the subject matter
involved as to enable him to make an understanding and enlightened
decision. This latter element requires that before the acceptance of
an affirmative decision by the experimental subject there should be
made known to him the nature, duration, and purpose of the
experiment; the method and means by which it is to be conducted; all
inconveniences and hazards reasonably to be expected; and the effects
upon his health or person which may possibly come from his
participation in the experiment.

The duty and responsibility for ascertaining the
quality of the consent rests upon each individual who initiates,
directs or engages in the experiment. It is a personal duty and
responsibility which may not be delegated to another with impunity.

2. The experiment should be such as to yield
fruitful results for the good of society, unprocurable by other
methods or means of study, and not random and unnecessary in nature.

3. The experiment should be so designed and based
on the results of animal experimentation and a knowledge of the
natural history of the disease or other problem under study that the
anticipated results will justify the performance of the experiment.

4. The experiment should be so conducted as to
avoid all unnecessary physical and mental suffering and injury.

5. No experiment should be conducted where there
is an a priori reason to believe that death or disabling injury will
occur; except, perhaps, in those experiments where the experimental
physicians also serve as subjects.

6. The degree of risk to be taken should never
exceed that determined by the humanitarian importance of the problem
to be solved by the experiment.

7. Proper preparations should be made and adequate
facilities provided to protect the experimental subject against even
remote possibilities of injury, disability, or death.

8. The experiment should be conducted only by
scientifically qualified persons. The highest degree of skill and
care should be required through all stages of the experiment of those
who conduct or engage in the experiment.

9. During the course of the experiment the human
subject should be at liberty to bring the experiment to an end if he
has reached the physical or mental state where continuation of the
experiment seems to him to be impossible.

10. During the course of the experiment the
scientist in charge must be prepared to terminate the experiment at
any stage, if he has probably cause to believe, in the exercise of
the good faith, superior skill and careful judgment required of him
that a continuation of the experiment is likely to result in injury,
disability, or death to the experimental subject.

Of the ten principles which have been enumerated
our judicial concern, of course, is with those requirements which are
purely legal in nature--or which at least are so clearly related to
matters legal that they assist us in determining criminal culpability
and punishment. To go beyond that point would lead us into a field
that would be beyond our sphere of competence. However, the point
need not be labored. We find from the evidence that in the medical
experiments which have been proved, these ten principles were much
more frequently honored in their breach than in their observance.
Many of the concentration camp inmates who were the victims of these
atrocities were citizens of countries other than the German Reich.
They were non-German nationals, including Jews and "asocial
persons", both prisoners of war and civilians, who had been
imprisoned and forced to submit to these tortures and barbarities
without so much as a semblance of trial. In every single instance
appearing in the record, subjects were used who did not consent to
the experiments; indeed, as to some of the experiments, it is not
even contended by the defendants that the subjects occupied the
status of volunteers. In no case was the experimental subject at
liberty of his own free choice to withdraw from any experiment. In
many cases experiments were performed by unqualified persons; were
conducted at random for no adequate scientific reason, and under
revolting physical conditions. All of the experiments were conducted
with unnecessary suffering and injury and but very little, if any,
precautions were taken to protect or safeguard the human subjects
from the possibilities of injury, disability, or death. In every one
of the experiments the subjects experienced extreme pain or torture,
and in most of them they suffered permanent injury, mutilation, or
death, either as a direct result of the experiments or because of
lack of adequate follow-up care.

Obviously all of these experiments involving
brutalities, tortures, disabling injury, and death were performed in
complete disregard of international conventions, the laws and customs
of war, the general principles of criminal law as derived from the
criminal laws of all civilized nations, and Control Council Law No.
10. Manifestly human experiments under such conditions are contrary
to "the principles of the law of nations as they result from the
usages established among civilized peoples, from the laws of
humanity, and from the dictates of public conscience."

Whether any of the defendants in the dock are
guilty of these atrocities is, of course, another question.

Under the Anglo-Saxon system of jurisprudence
every defendant in a criminal case is presumed to be innocent of an
offense charged until the prosecution, by competent, credible proof,
has shown his guilt to the exclusion of every reasonable doubt. And
this presumption abides with the defendant through each stage of his
trial until such degree of proof has been adduced. A "reasonable
doubt" as the name implies is one conformable to reason--a doubt
which a reasonable man would entertain. Stated differently, it is
that state of a case which, after a full and complete comparison and
consideration of all the evidence, would leave an unbiased,
unprejudiced, reflective person, charged with the responsibility for
decision, in the state of mind that he could not say that he felt an
abiding conviction amounting to a moral certainty of the truth of the
charge.

If any of the defendants are to be found guilty
under counts two or three of the indictment it must be because the
evidence has shown beyond a reasonable doubt that such defendant,
without regard to nationality or the capacity in which he acted,
participated as a principal in, accessory to, ordered, abetted, took
a consenting part in, or was connected with plans or enterprises
involving the commission of at least some of the medical experiments
and other atrocities which are the subject matter of these counts.
Under no other circumstances may he be convicted.

Before examining the evidence to which we must
look in order to determine individual culpability, a brief statement
concerning some of the official agencies of the German Government and
Nazi Party which will be referred to in this judgment seems
desirable.

Sources:U.S.
Holocaust Memorial Museum. Trials of War Criminals before the
Nuremberg Military Tribunals under Control Council Law No. 10.
Nuremberg, October 1946 - April 1949. Washington D.C.: U.S. G.P.O,
1949-1953.